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CUSTOMER TERMS AND CONDITIONS OF CYBER VIGILANCE LIMITED

1. Validity and acceptance of these terms and conditions

 

1.1. Cyber Vigilance Limited is a private limited company incorporated and registered in England and Wales with company number 11630666 whose registered office address is at 35 Station Approach, West Byfleet, Surrey, England, KT14 6NF (“Cyber Vigilance”).

1.2. These terms and conditions (“Terms”), together with the Order Confirmation (as defined below) issued by Cyber Vigilance in response to the Customer’s Order (as defined below) constitute a binding agreement (“the Agreement”) between Cyber Vigilance and the Customer for the supply of Licences and/or Equipment and/or the provision of Services (all as defined below). In the event of any conflict between these Terms and the Order Confirmation, the terms set out in the Order Confirmation will prevail.

1.3. Unless agreed otherwise in writing by Cyber Vigilance, all Licences, Equipment and Services are supplied under the terms of the Agreement to the exclusion of all other terms and conditions, including any terms and conditions which the Customer might try to introduce or rely on. 

1.4. If you are entering into this Agreement on behalf of a company, organisation or other entity, you represent that you have full and proper authority to bind such entity and are agreeing to this Agreement on behalf of such entity.

2. Definitions and interpretation

2.1. The following definitions and rules of interpretation apply in these Terms:

Account Details: all account information of the Customer, including without limitation any username(s) and password(s).

 

Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.

Business Day: a day other than a Saturday, Sunday or public holiday in England.

 

Confidential Information: means:

(a) All information relating to the business, assets, affairs, pricing, finances, business plans, strategies, customers, clients or suppliers of the Disclosing Party;

(b) All technical or commercial know-how, specifications, inventions, operations, processes, product information, technical data, analysis, initiatives, designs, trade secrets, software (including source code), information relating to research and/or development work and proposals for services or Equipment; and

(c) Any other information of a confidential or proprietary nature not generally known to the public, whether of a technical, business or other type, that is disclosed by the Disclosing Party arising out of or in connection with the Agreement and which could reasonably have been understood by the Receiving Party to be proprietary or confidential to the Disclosing Party (including information marked as “Confidential” by the Disclosing Party).

Customer: the person, company, organisation, business or other legal entity which enters into the Agreement with Cyber Vigilance.

Data Protection Legislation:

(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.

(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Cyber Vigilance is subject, which relates to the protection of Personal Data.

 

Delivery Date: the date specified in the Order Confirmation for delivery of the Equipment or the date and time agreed between the parties prior to delivery.

 

Delivery Location: the location to which the Equipment is to be delivered, as set out in the Order Confirmation or as agreed between the parties prior to delivery.

 

Disclosing Party: the party disclosing Confidential Information.

 

Equipment: computer hardware and any other equipment to be provided to the Customer by Cyber Vigilance under the Agreement, as set out in the Order Confirmation and/or as further specified in any related statement of work which may be agreed between the parties.

 

Equipment Specification: any specification for the Equipment agreed in writing between Cyber Vigilance and the Customer. 

 

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

 

EULA: the applicable end user licence agreement from a Licensor relating to the Licences granted to the Customer.

 

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

 

Licences: the permission granted by a Licensor to the Customer allowing the Customer to exercise certain privileges in relation to the Licensor’s software, regardless of whether that software is installed on the Customer’s premises or accessed as cloud services.

 

Licensor:  the legal entity that is the owner of the Intellectual Property Rights vested in the Licences with the authority to define the EULA and any other terms and conditions for the use of the Licences.

 

Order: the Customer’s order for Licences and/or Equipment and/or Services, which may be set out in a purchase order, by way of written acceptance of a quotation from Cyber Vigilance, email or any other written form.

 

Order Confirmation: the document issued by Cyber Vigilance to the Customer confirming Cyber Vigilance’s acceptance of the Customer’s Order and containing details of the Licences and, where applicable, the Equipment and/or the Services to be supplied to the Customer under the Agreement, the applicable fees and any other terms that the parties agree upon.

 

Receiving Party: the party receiving Confidential Information.

 

Services: the services to be provided to the Customer under the Agreement, as set out in the Order Confirmation and/or as further specified in any related statement of work which may be agreed between the parties.

 

Software: the software licensed to the Customer under the Agreement.

 

UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

2.2. Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.

2.3. A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

2.4. Words and phrases used in the Agreement shall be interpreted in accordance with their ordinary meaning except and to the extent that a particular definition is specified in the Agreement.

2.5. A reference to a statute or statutory provision is a reference to it as replaced, extended or re-enacted from time to time and includes primary and delegated legislation and any provision of EU law having direct effect or direct applicability in the UK.

2.6. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2.7. A reference to writing or written excludes fax but includes email.

3. The Agreement

3.1. In response to a Customer request for the supply of Licences, Equipment and/or Services, Cyber Vigilance may issue a quotation which shall be effective for a period of 20 Business Days from its date of issue. If not accepted by the Customer within that time, such quotation shall automatically lapse and be of no effect.

3.2. Quotations issued by Cyber Vigilance and Orders issued by the Customer are not legally binding upon either party. An Agreement shall take effect and become legally binding on the parties only when Cyber Vigilance issues an Order Confirmation to the Customer or (if earlier) supplies the Licences and/or the Equipment to the Customer or provision of the Services commences.

4. Delivery of the Licences and the Software

4.1. Cyber Vigilance may deliver the Licences and the Software to the Customer by electronic transmission, electronic access, download or other method provided by the Licensor. 

4.2. After Cyber Vigilance has placed its order with the Licensor and issued the Order Confirmation, the Licences granted under this Agreement are irrevocable, non-cancellable and cannot be modified.

5. Acceptance of Licences

5.1. The Customer shall inspect the Licences immediately upon delivery, to ensure that the Licences delivered are in the correct quantity. In the event of errors in the quantity or type of Licences, or to the extent allowed by the Licensor’s return policies, the Customer may return the Licences. If the Customer does not object to the quantity or type of Licences within 5 Business Days of their receipt, then such Licences will be deemed accepted upon the delivery date. Cyber Vigilance will not accept the return of supplied Licences unless such returns are admissible as per the Licensor’s return policies. If the Licences received are not those detailed in the Agreement, the Customer shall inform Cyber Vigilance within 10 Business Days of delivery.

 

5.2. The Customer acknowledges that the EULA of certain Licensors may have automatic renewal provisions for the Licences, requiring licensees to provide notice of their intention not to renew a Licence. If any of the Licences purchased under the Agreement contain an automatic renewal provision and the Customer does not wish to renew such a Licence, the Customer shall: (i) provide notice to Cyber Vigilance of its intention not to renew such Licence at least 30 days in advance of any period required by the Licensor in the EULA; and (ii) provide notice of its intention not to renew the Licence to the Licensor as required by the EULA. If the Customer fails to deliver the required notice of intent not to renew, then the Licence will renew and the Customer will be responsible for payment of the applicable fees.

6. Supply and delivery of the Equipment

 

6.1. The Equipment is described in the Order Confirmation, subject to any modifications set out in any applicable Equipment Specification. Cyber Vigilance reserves the right to amend the Equipment Specification if required by any Applicable Laws and shall notify the Customer in any such event.

6.2. Cyber Vigilance shall deliver the Equipment specified in each Order Confirmation:

6.2.1. On its relevant Delivery Date; and

6.2.2. To the Delivery Location.

6.3. Delivery shall be completed when the Equipment has been unloaded at the Delivery Location.

6.4. Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. Cyber Vigilance shall not be liable for any delay in delivery of the Equipment that is caused by factors beyond Cyber Vigilance’s reasonable control or the Customer’s failure to provide adequate or accurate delivery or other instructions relevant to the supply or delivery of the Equipment.

6.5. If Cyber Vigilance fails to deliver the Equipment, its liability shall be limited to such reasonable additional costs and expenses as are incurred by the Customer in obtaining replacement equipment of similar description and quality in the cheapest market available.

6.6. Title and risk in the Equipment shall pass to the Customer on completion of delivery.

7. Quality of the Equipment

7.1. Cyber Vigilance shall ensure that, on delivery, the Equipment:

7.1.1. Corresponds in all material respects with its description and any applicable Equipment Specification;

7.1.2. Is free from material defects in design, material and workmanship. 

7.2. Subject to clause 7.3, if the Equipment does not conform with the undertakings at clause 7.1, Cyber Vigilance shall, at its option, repair or replace any defective Equipment, or refund the price of the defective Equipment in full, provided that:

7.2.1. The Customer gives written notice to Cyber Vigilance that some or all of the Equipment does not comply with the undertakings set out at clause 7.1: 

7.2.1.1. In the case of a defect that is apparent on normal visual inspection, within three Business Days of delivery; or 

7.2.1.2. In the case of a latent defect, within a reasonable time of discovery of the latent defect;

7.2.2. Cyber Vigilance is given a reasonable opportunity to examine such Equipment; and

7.2.3. The Customer (if requested to do so by Cyber Vigilance) returns such Equipment to Cyber Vigilance’s place of business.

7.3. Cyber Vigilance shall not be liable for the Equipment’s failure to comply with the undertakings at clause 7.1 if:

7.3.1. The Customer makes any further use of the Equipment after giving notice in accordance with clause 7.2;

7.3.2. The defect arises because the Customer failed to follow oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;

 

7.3.3. The defect arises as a result of Cyber Vigilance following any drawing, design or Equipment Specification supplied by the Customer;

 

7.3.4. The Customer alters or repairs such Equipment without the written consent of Cyber Vigilance;

 

7.3.5. The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

 

7.3.6. The Equipment differs from its description as a result of changes made to ensure it complies with Applicable Laws.

 

7.4. The Customer agrees and accepts that, with respect to defects in the Equipment arising other than under the undertaking in clause 7.1, the Customer’s exclusive remedies shall be under the terms of the applicable manufacturer’s guarantee.

7.5. Except as provided in this clause 7, Cyber Vigilance shall have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 7.1.

 

7.6. These Terms shall apply to any repaired or replacement Equipment supplied by Cyber Vigilance.

 

7.7. Risk in the Equipment shall pass to the Customer on completion of delivery.

 

7.8. Title to the Equipment shall not pass to the Customer until Cyber Vigilance receives payment in full (in cash or cleared funds) for the Equipment.

 

7.9. Until title to the Equipment has passed to the Customer, the Customer shall: 

 

7.9.1. Store the Equipment separately from all other goods or equipment held by the Customer so that it remains readily identifiable as Cyber Vigilance’s property; 

 

7.9.2. Not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;

 

7.9.3. Maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on Cyber Vigilance’s behalf from the date of delivery;

7.9.4. Notify Cyber Vigilance immediately if the Customer becomes subject to any of the events listed in clause 17.2.2; and

7.9.5. Give Cyber Vigilance such information relating to the Equipment as Cyber Vigilance may require from time to time.

8. Cyber Vigilance’s obligations

8.1. Cyber Vigilance shall provide the Services:

8.1.1. Using reasonable skill, care and diligence; 

8.1.2. Using suitably qualified and experienced personnel;

8.1.3. In all material respects in accordance with any statement of work agreed with the Customer; and 

8.1.4. In compliance with Applicable Laws.

8.2. Cyber Vigilance shall procure that its representatives shall, while on site at any premises of the Customer, comply with the Customer's reasonable health and safety and security policies provided that these have been brought the attention of its representatives.

9.  Customer’s obligations

9.1. The Customer shall: 

 

9.1.1. Be responsible for setting up its account with Cyber Vigilance and will ensure that all information provided in this regard is true, accurate, up to date and not misleading in any respect. The Customer shall keep the account information updated on an ongoing basis;

 

9.1.2. Keep all Account Details secure and strictly confidential and will employ reasonable security processes in that respect;

 

9.1.3. Be responsible for all activities and/or transactions carried out using the Account Details, whether or not authorised by the Customer, including any related charges or expenses. The said account is for the Customer’s use only and the Customer undertakes not to authorise or permit anyone else to use its account and not to transfer or assign it to anyone else. The Customer agrees to notify Cyber Vigilance immediately if it becomes aware of any unauthorised use of its account or the Account Details. The Customer agrees that Cyber Vigilance is not responsible for any errors or failures in payment arising from incorrect payment or bank details provided by the Customer;

 

9.1.4. Co-operate with Cyber Vigilance in all matters relating to the provision of the Licences and/or the Equipment and/or the Services under the Agreement; 

 

9.1.5. Provide Cyber Vigilance in a timely manner with such information as Cyber Vigilance may reasonably require in order to supply the Licences and/or the Equipment and/or the Services, and ensure that such information is accurate and complete in all material respects;

 

9.1.6. Comply promptly with all reasonable instructions given by Cyber Vigilance;

 

9.1.7. Without affecting its other obligations under the Agreement, comply with all Applicable Laws in using the Licences and/or the Equipment and/or the Services and with respect to the Customer’s activities under the Agreement; 

 

9.1.8. Obtain and maintain all necessary licences, consents and permissions necessary for Cyber Vigilance to perform its obligations under the Agreement, including without limitation the Services; 

 

9.1.9. Inform Cyber Vigilance promptly of any problems with the Customer’s use of the Licences or the Equipment or receipt of the Services; 

 

9.1.10. Provide timely access to such of the Customer’s premises, personnel, systems and other facilities as agreed with Cyber Vigilance in advance and as necessary for the purpose of providing the Services; and

 

9.1.11. Inform Cyber Vigilance of any health and safety and security policies which apply at the Customer’s premises.

 

9.2. If the performance of Cyber Vigilance is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees then, without prejudice to any other right or remedy it may have, Cyber Vigilance shall be allowed an extension of time to perform its obligations equal to the period of delay caused by the Customer.

 

9.3. The Customer shall be solely responsible for: 

9.3.1. Backing up its data; 

 

9.3.2. Ensuring normal operation of its own software; and 

 

9.3.3. The necessary working environment of the Software.

 

10. Data protection

10.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation.

 

10.2. The parties acknowledge that the terms “control”, “controller”, “process”, “processor”, “Sub-Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Special Category Personal Data” and derived and inflected word forms used in these Terms have the meanings as defined in the Data Protection Legislation.

 

10.3. The parties further acknowledge that, if Cyber Vigilance processes any Personal Data on the Customer’s behalf in performing its obligations under the Agreement, it shall do so as a processor of such Personal Data and the Customer shall be the controller of such Personal Data.

 

10.4. Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Personal Data to Cyber Vigilance for the duration and purposes of the Agreement so that Cyber Vigilance may lawfully use, process and transfer the Personal Data in accordance with the Agreement on the Customer’s behalf. The Customer hereby agrees to indemnify and hold Cyber Vigilance harmless from and against any and all liability, actions, claims, damages and other costs arising from or relating to any breach of the Customer’s said obligations and/or any claim or action brought by any Data Subject(s), other than any claim resulting from Cyber Vigilance’s breach of the terms of the Agreement.

 

10.5. Without prejudice to the generality of clause 10.1, Cyber Vigilance shall, in relation to any Personal Data processed in connection with the performance by Cyber Vigilance of its obligations under the Agreement:

 

10.5.1. Process that Personal Data only on the documented written instructions of the Customer unless Cyber Vigilance is required to do otherwise by Applicable Laws. Where it is so required, Cyber Vigilance shall promptly notify the Customer of this before processing the Personal Data, unless prohibited from doing so by those Applicable Laws;

 

10.5.2. Ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;  

 

10.5.3. Not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:

 

10.5.3.1. The Customer or Cyber Vigilance has provided appropriate safeguards in relation to the transfer;

 

10.5.3.2. The Data Subject has enforceable rights and effective legal remedies;

 

10.5.3.3. Cyber Vigilance complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

 

10.5.3.4. Cyber Vigilance complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

10.5.4. Assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

 

10.5.5. Notify the Customer without undue delay on becoming aware of a Personal Data breach;

 

10.5.6. At the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Laws to store the Personal Data; and

 

10.5.7. Maintain complete and accurate records and information to demonstrate its compliance with this clause 10.

 

10.6. The Customer hereby authorises Cyber Vigilance to appoint third-party processors of Personal Data under the Agreement. Cyber Vigilance confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause

10. As between the Customer and Cyber Vigilance, Cyber Vigilance shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 10.

 

11. Intellectual Property Rights

 

11.1. The Customer acknowledges that no Intellectual Property Rights or other proprietary rights in the Software pass to the Customer. The Customer is licensed to use the Software in accordance with the Agreement and the applicable EULA and by entering into the Agreement the Customer agrees to enter into and comply with the terms of such EULA(s).

 

11.2. Each party grants to the other a non-exclusive, limited, revocable licence to use its Intellectual Property Rights during the term of the Agreement solely to the extent necessary for the other party to perform its obligations under the Agreement. The parties agree that all Intellectual Property Rights which existed prior to the date of the Agreement in relation to any items used in the performance of any Services shall remain the property of the existing owner of those Intellectual Property Rights.

 

11.3. Cyber Vigilance shall own and be fully entitled to use in any way it deems fit any Intellectual Property Rights, including skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing the Services and any improvements made or developed during the course of performing the Services. Nothing in this Agreement shall be construed or shall give effect to any transfer of right, title or interest in the Customer’s or Cyber Vigilance’s Intellectual Property Rights.

 

11.4. Save where the relevant EULA permits such copying, the Customer shall not, without Cyber Vigilance’s prior written consent, copy or reproduce in any way the whole or a part of the user manual or any other documentation which has been supplied to the Customer relating to any Licence or the Services.

 

12. Fees and payment

12.1. The Customer shall pay Cyber Vigilance the fees for the Licences, the Equipment and/or the Services as specified in the Order Confirmation. Cyber Vigilance will invoice such fees to the Customer in accordance with the billing periods specified in the Order Confirmation.

 

12.2. Cyber Vigilance reserves the right to increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to Cyber Vigilance that is due to:

 

12.2.1.  any factor beyond the Cyber Vigilance’s control (including foreign exchange fluctuations, increases in taxes and duties, or  increases in supplier costs, labour, materials and other manufacturing costs);

12.2.2. any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; or

 

12.2.3. any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give Cyber Vigilance adequate or accurate information or instructions in respect of the Equipment.

 

12.3. In addition to the fees, the Customer will pay the reasonable expenses incurred by Cyber Vigilance in connection with the Services, together with the costs to Cyber Vigilance of any materials or services procured by Cyber Vigilance from third parties for the provision of the Services, as such expenses and costs are set out in the agreed statement of work or are approved by the Customer from time to time. Such costs and expenses shall be payable by the Customer monthly in arrears, following submission by Cyber Vigilance of an appropriate invoice, receipts and any other appropriate supporting documentation.

 

12.4. Each invoice issued by Cyber Vigilance to the Customer shall be payable within thirty (30) days after the date of such invoice. If the Customer disputes any invoice issued by Cyber Vigilance it must notify Cyber Vigilance of such dispute and the reason for it within 5 Business Days of receipt of that invoice, failing which the invoice will be deemed accepted and any right of dispute of the Customer shall be waived.

 

12.5. If the Customer fails to pay any undisputed sums which are due to Cyber Vigilance under the Agreement by the due date specified in the relevant invoice then, without affecting any other right or remedy available to Cyber Vigilance: 

 

12.5.1. The Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, or at 4% a year for any period when that base rate is below 0%; and

 

12.5.2. If the overdue sum remains outstanding for 7 days after Cyber Vigilance has notified the Customer that the sum is overdue Cyber Vigilance may, without liability to the Customer, suspend performance of all or part of its obligations under the Agreement and shall be under no obligation to provide any or all of the Licences and/or the Equipment and/or the Services until the overdue sum has been paid in full. 

12.6. Fees are exclusive of value added tax, which shall be added (where applicable) to Cyber Vigilance's invoice(s) at the appropriate rate.

12.7. Save as expressly stated in these Terms, all amounts and fees stated or referred to in these Terms are non-cancellable and non-refundable and shall be paid in full without set-off or deduction.

 

13. Warranties and disclaimer

13.1. Cyber Vigilance and the Customer each represent and warrant that: 

 

13.1.1. It has full corporate right, power and authority to enter into the Agreement; and 

13.1.2. Performance of its obligations and duties hereunder does not and will not violate any obligation or duty owed to a third party. 

13.2. The Customer acknowledges that Cyber Vigilance only delivers the Software subject to the applicable EULA, which may contain a limited warranty from the Licensor. The Customer acknowledges that it will be required to enter into a EULA with the Licensor as a condition precedent to using the Software. All of the Customer’s rights and remedies with respect to the Software will be governed by the applicable EULA, which will outline all warranties and representations relating to the Software. Cyber Vigilance does not make any representations or warranties in relation to the Software.

13.3. Any third party services distributed by Cyber Vigilance are delivered with the service provider’s limited warranty. The warranties for third party services that are not performed by Cyber Vigilance will be governed by the applicable policies and procedures of the service provider only. Cyber Vigilance does not make any express or implied warranties for third party services. 

13.4. Except as expressly and specifically provided in the Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from the Agreement.

14. Limitation of liability

14.1. Nothing in the Agreement excludes or limits the liability of either party for: 

14.1.1. Death or personal injury caused by that party's negligence;  

14.1.2. Fraud or fraudulent misrepresentation; or

14.1.3. Any liabilities that cannot be excluded under Applicable Laws.

14.2. Subject to clause 14.1 

14.2.1. Cyber Vigilance shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and 

 

14.2.2. Cyber Vigilance's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees paid by the Customer under the Agreement during the 12 months immediately preceding the date on which the claim arose.

 

15. Support

 

15.1. Cyber Vigilance will not provide any technical support, training or installation, unless expressly set out as part of the Services in the Order Confirmation.

 

16. Confidentiality 

 

16.1. The Receiving Party shall keep the Disclosing Party’s Confidential Information secret and confidential and shall not:

 

16.1.1. Use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Agreement (Permitted Purpose); or

 

16.1.2. Disclose, communicate or make available such Confidential Information, in whole or in part, to any third party, except as expressly permitted by this clause 16.

 

16.2. The Receiving Party may disclose the Disclosing Party’s Confidential Information: 

 

16.2.1. To its employees, officers, representatives, contractors, subcontractors or advisers (Personnel) who need to know such information for the Permitted Purpose, provided it informs such Personnel of the confidential nature of the Confidential Information before disclosure, ensures that such Personnel are subject to obligations of confidentiality corresponding to those which bind the Receiving Party and the Receiving Party remains responsible at all times for the compliance of such Personnel with the confidentiality obligations set out in this clause 16; and

 

16.2.2. To the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of the disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.2.2, it takes into account the reasonable requests of the Disclosing Party in relation to the content of the disclosure.

 

16.3. Notwithstanding the foregoing, the restrictions of this clause 16 shall not apply to information that:

 

16.3.1. Was already in the public domain at the time of its communication to the Receiving Party;

 

16.3.2. Enters the public domain through no fault of the Receiving Party subsequent to the time of its communication to the Receiving Party;

 

16.3.3. Was in the Receiving Party's lawful possession free of any obligation of confidence at the time of its communication to the Receiving Party;

 

16.3.4. Is developed by the Receiving Party independently of and without reference to Confidential Information; or

 

16.3.5. Is lawfully disclosed to the Receiving Party by a third party, provided the Receiving Party does not know of any obligation of confidentiality restricting disclosure by the third party.

 

16.4. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this clause 16 are granted to the other party, or to be implied from the Agreement.

 

16.5. This clause 16 shall survive termination of the Agreement for any reason. 

 

17. Term and termination

 

17.1. The Agreement shall take effect upon issue of the Order Confirmation by Cyber Vigilance or upon delivery of the Licences or Services (whichever is earlier) and shall continue for the period specified in the Order Confirmation, until terminated earlier in accordance with this clause 17.

 

17.2. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party: 

 

17.2.1. Commits a material breach of any term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; 

 

17.2.2. Takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 17.2.2; or 

 

17.2.3. Suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

 

17.3. On termination of the Agreement for any reason:

17.3.1. All Licences, rights, entitlements and permissions granted under the Agreement shall immediately terminate;

 

17.3.2. The Customer shall return and make no further use of any equipment, property, Confidential Information or other materials belonging to Cyber Vigilance; and

 

17.3.3. Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

18. Force majeure

Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. 

19. General provisions

19.1. Variation: No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

19.2. Waiver: A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

 

19.3. Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

 

19.4. Entire agreement

 

19.4.1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

19.4.2. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.

19.5. Assignment: The Customer shall not, without the prior written consent of Cyber Vigilance, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Cyber Vigilance may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19.6. No partnership or agency: Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19.7. Third party rights: The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

19.8. Notices: Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. 

 

20. Governing law: The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

21. Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

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